Westminster update: court resourcing discussed in relation to renters' rights

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Court resourcing raised in Renters' Rights debate

The Renters' Rights Bill had its second reading in the Lords on Tuesday 4 February.

Peers were keen to raise the impact of the bill on housing legal aid and to ask for clarity from the minister on the government’s plans for better resourcing the courts.

The Law Society was referenced by two Conservative peers on this issue.

The Lords housing minister Baroness Taylor (Labour) outlined a new government amendment on limiting rent in advance payments, which we had pushed for during previous stages.

The amendment limits the amount of rent in advance that a landlord can require after the tenancy has been signed but before the tenant has taken possession to a maximum of one month.

Aside from this provision, landlords will no longer be able to include any terms in the tenancy agreement that have the effect of requiring rent to be paid prior to the rent due date.

The minister also gave an update on the private rental sector landlord ombudsmen.

The government aims to introduce a new private rented sector landlord ombudsman service that will deliver quick, fair, impartial and binding resolutions for tenants whose landlords fail to resolve legitimate complaints.

The ombudsman will support a number of the new measures the bill introduces, giving tenants further opportunities to escalate issues (for example, where a landlord has encouraged a bidding war or unreasonably refused a pet).

The Liberal Democrats pushed the minister to be more ambitious with the landlord database, stressing concerns about unregistered landlords “about whom we have limited knowledge, information and transparency”.

Lord Shipley (Liberal Democrat) was clear that “a database can be either a tick-box exercise or a significant game-changer on this. I hope the bill progresses and that it will be the latter”.

On the issue of courts, the Conservative shadow housing minister claimed that, as the bill will come into force before improvements to the courts are made, they will not have the resources necessary to deal with the likely increase in legal challenges.

Lord Jamieson and Lord Northbrook (Conservative) both asked for clarity from the minister on the courts improvement programme, flagging that the government has been working “to ensure that the court system is ready at the point that the new system comes into effect” since September, with little update since.

They added “we have rightly warned that without investment for housing legal aid and the courts, the bill will not achieve its aims”.

Despite representing the most significant reforms to the private rented sector in over 30 years, no clear implementation plan has been developed or published.

In summing up, the minister attempted to reassure the Lords that the government will work closely with all parts of the sector, including the courts, to ensure a smooth transition to the new system and provide sufficient notice ahead of implementation.

She added: “we do not believe that it is appropriate to tie in the implementation date of these urgently needed reforms to what could be a subjective assessment of court readiness”.

The bill passed second reading and will now move to a committee of the whole house, following February recess.

Strength of English law highlighted in Arbitration Bill debate

The Arbitration Bill finally made its way to the Commons on 29 January for second reading, led by justice minister Nic Dakin.

He opened the debate with a long history of the strength of English and Welsh arbitration, highlighting the prestige and international reputation of our jurisdiction.

He noted London has become the world’s leading destination for international arbitration and is highly respected as a neutral venue for resolving disputes across the world, something in which the government rightly takes immense pride.

He quotes Law Commission estimates that at least 5,000 arbitrations take place in England and Wales each year, directly contributing at least £2.5 billion a year to our economy in fees alone.

He added that arbitration and the bill are a key part of the growth agenda.

The bill began its life under the previous government and has had some small changes during the passage of parliamentary scrutiny.

The minister introduced an amendment to clause 13 which now better reflects the case law on appeals.

A second change was to clause 1 to address concerns about the effect on arbitrations between investors and states, in particular those that follow from an open invitation to arbitrate made in a trade agreement or in domestic legislation.

The current position is that those arbitrations are governed by international law and foreign domestic law.

Sector feedback made clear that that is how the government should continue.

This change therefore provides that new section 6A(1) of the Arbitration Act 1996 does not apply to arbitration agreements derived from standing offers to arbitrate contained in treaties or non-UK legislation.

The Conservative shadow minister Kieran Mullan added his support to the bill.

He agreed that London stands proudly as one of the world’s most preferred seats for international arbitration, alongside Singapore.

He added that this position “reflects the strength of our legal system, the confidence of global businesses in our expertise and the robustness of the original 1996 Act. However, as other jurisdictions modernise their arbitration laws, we must ensure that ours remain cutting edge to safeguard our competitive lead”.

The bill will move to a committee of the whole house in the Commons next Tuesday.

Legal options for UK-EU reset discussed at the European Affairs Committee

On 28 January, the Lords European Affairs Committee had its second session on the UK-EU reset.

A mix of academics and lawyers gave evidence.

Professor of European law Catherine Barnard, former judge Sir Richard Aikens and professor of law Graham Butler shared their views on the legal and parliamentary steps that need to be taken to improve the UK-EU Trade and Cooperation Agreement (TCA).

Lord Ricketts (cross bench) asked about the legal framework for the current UK-EU relationship and how to go about changing it under both current EU law and the provisions of the TCA.

Professor Barnard noted article 7 of the TCA has quite considerable powers to amend where the text of the TCA provides it.

Graham Butler added that “there is lots of flexibility for third states – non-EU member states – to be involved in certain initiatives, but it very much depends on what that initiative may be”.

The UK does, to some extent, already align with certain EU initiatives like sanctions laws.

Sir Aikens clarified the steps needed to amend the TCA from the UK side, noting that as far as UK law is concerned, anything that is agreed between the UK and any other outside legal entity such as the EU, cannot have effect in UK law unless it is given effect by an act of Parliament.

A new version of the TCA could either legislated for by a new act of Parliament, or it could be done if there is power to do so under an existing act of Parliament.

He stressed that “if you really did want to make significant amendment to the TCA, it would require a new act of Parliament”.

The committee went on to discuss the strength of the UK’s negotiating position when the TCA comes up for review in 2026.

The witnesses agreed the UK is in a relatively strong position given the government’s vocal commitment to improving the relationship with the EU.

Professor Barnard noted the EU does not speak with one voice but is comprised of multiple institutions.

This means parts of the commission are very enthusiastic about some form of reset, but others still remember the difficulties over the negotiations in 2019/20 and will be more reluctant to engage.